No White Males Need Apply

Filling a vacancy on the Supreme Court is, of course, among the most consequential of presidential acts—not quite so grave, perhaps, as taking the nation into war, but in the long run probably of more lasting effect. Indeed, the Court has itself become something of a theater of war, one in which the terms that the victors succeed in imposing upon the vanquished can shape the life of the country for generations. Thus every resignation from that body nowadays sets off an immediate and lively round of national debate. In addition to the inevitable gossip about whose name is most likely to be on the famous “short list,” there is much proffering of advice to the President about where his duty now lies.

The resignation of Justice Harry Blackmun, announced on April 5, was certainly no exception—despite the fact that since the Justice and the President stood pretty much on the same side of the political street, there was general agreement that whoever was appointed would in all likelihood not make much difference to the ideological balance of the Court. Still, for at least some of the President’s would-be advisers, there were other kinds of balance to worry about. As early as April 7 the New York Times editorialists, for instance, already found themselves quite concerned about certain rumors that were coming out of Washington, and they hastened to share their concerns with Clinton in an editorial entitled “How to Fill a Justice’s Shoes.”

Following Blackmun’s announcement, the President had declared his intention to appoint someone of “genuine stature and largeness of ability and spirit” to the Court. Such generality, the editorial began, would not suffice: Clinton must make sure to find someone—to be sure, the Times agreed, “of unquestioned excellence”—who would, just as Blackmun had done, “hold the line on civil rights, civil liberties, abortion, religious liberty, and other precious rights that the Reagan and Bush administrations sought to restrict.”

But this alone would not be sufficient, either. In seeking this excellent someone who would protect the nation’s basic liberties from the depredations of some future Reagan or Bush, the President also needed “to reach beyond the herd of white male candidates who have long been amply represented on the Court.” With this nomination, Clinton had the chance “to make the high court look more like the face of America”; and to do so “would enhance the stature, competence, and spirit of the Supreme Court itself.” For, the editorial continued, “The institution’s ability to adjudicate for an increasingly diverse nation will be improved if it has more members who come from more richly diverse communities.”

Though Clinton had already done much to further “diversity” in the making of appointments, the Times was disturbed by the talk being bruited about in Washington that the new nominee to the Supreme Court would be selected from a certain list of white males, among them such Washington insiders as Senate Majority Leader George Mitchell and Secretary of the Interior Bruce Babbitt. These were able figures, the editorial conceded, but the list that so prominently featured them “is not a sign that the administration is thinking expansively and creatively.” American Presidents, after all, had long attempted to achieve some kinds of variety, such as geographic balance, on the Court. Now there was an opportunity to “enrich the mix of the Court” in “innovative ways.”

The appointment of Ruth Bader Ginsburg, the editorial continued, had been just such an innovation, taking the Court beyond the “gender ‘breakthrough’” represented by the earlier appointment of Sandra Day O’Connor as its first woman Justice. Why not, then, another woman? (The Times mentioned the name of New York’s Chief Judge, Judith Kaye.) Or another black?: “. . . the Court has need of . . . stronger assertion of traditional civil-rights protections,” especially since its only black member, Clarence Thomas, “continues to rule so far outside the tradition of Thurgood Marshall.” (Here the Times suggested Solicitor General Drew Days.) Or this enrichment might take the form of appointing the first Hispanic to the Court. (The Times confessed to having heard of only one—Judge José Cabranes of the federal court in Connecticut—but was happy to have learned from a number of “specialists” that “the legal field is full of top-flight Hispanic lawyers and judges.”)

The editorial reminded the President that Justice Blackmun began his Supreme Court service on a body almost exclusively composed of white males. “He grew and grew in the job. In time he gave instruction to Justice Sandra Day O’Connor on the emancipation of women, and he had much to teach Justice Thomas about racial fairness.”

In conclusion, the editorial admonished the President: “A Supreme Court that looks more like America can do more for justice because it starts by earning more of America’s confidence. President Clinton . . . know[s] this, and should not forget it.”

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The question that immediately springs to mind about this editorial is whether its author can possibly be aware that, in singing the praises of Justice Blackmun as he does, he is contradicting the very point he has set out to make.

According to the editorialist, Blackmun was essential to holding the line when Reagan and Bush sought to restrict so many of “our precious rights.” But however else one might wish to characterize the good Justice, he is beyond doubt a white male—indeed, as they say, a quintessential white male—from Minneapolis, a predominantly white Midwestern city. And even though he cannot claim, in the Times’s view of things, to “look more like America,” he was evidently able, or so the editorial itself tells us, to offer instruction in their proper duties to two colleagues who do.1

Admittedly, this is not something any white male could be expected to manage right off the bat. He would first, like Justice Blackmun (a Republican appointed by Richard Nixon), have to “grow”—a process, as we know, that has nothing to do with an increase in stature and everything to do with a firming-up and sharpening of the correctness of one’s thinking on a particular range of social issues. But since at least one of the two women on the Court required instruction on the emancipation of women, while the one black, in the Times’s judgment, has not even yet learned much about racial fairness, you might think that another white male would be the safest bet.

Except, of course, for that problem of “looks.” According to the Times, enriching the “mix” of the Court with another woman or black or Hispanic (Asians have evidently not yet made their mark on the look of the country) will “[earn] more of America’s confidence.” Leaving aside what this prediction says about the Times’s opinion of the quality of citizenship of America’s blacks and Hispanics and women, it is difficult to imagine what might happen in this most litigious of societies if Americans were to repose any more confidence in the Court than they already do. Perhaps in the end they might simply do away with legislatures altogether.

As it happens, though, the real danger is on the other foot. For if the Times were to get its way, the chances are that, far from earning “more of America’s confidence,” the Court would sink in public esteem, just as so many other great institutions—including the Times itself—have done when they have surrendered, whether out of expediency or out of misguided ideas, to similar demands for “diversity.”

Footnotes

1 To take up the question of whether Minneapolis “looks” more or less “like America” than, say, Los Angeles or the South Bronx would make for a lively national debate—perhaps one that is by now long overdue.